[Redacted], Elroy K., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Feb 27, 2023

Appeal No. 2021004828 (E.E.O.C. Feb. 27, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elroy K.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2021004828 Hearing No. 530-2018-00298X Agency No. DLAN-17-0139 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 30, 2021, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Materials Examiner and Identifier at the Agency’s Defense Distribution Center in New Cumberland, Pennsylvania. Starting on July 11, 2017, Complainant filed EEO complaints alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), disability (perceived), and age, and in reprisal for prior protected EEO activity, when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021004828 2 1. on March 13, 2017, an Administrative Assistant informed Complainant that she had a security clearance and was authorized to look at his medical records; and on March 20, 2017, during his annual physical, an Occupational Nurse told Complainant that he needed to provide medical documentation regarding his catheter cardio procedure and would be placed in a non-deployable status for one year; 2. on March 29, 2017, the Agency subjected Complainant to retaliatory harassment when a Transportation Management Officer (“Officer”) emailed Complainant and instructed him to not ship his personal property via government conveyance; 3. on July 14, 2017, the Agency subjected Complainant to retaliatory harassment when Complainant’s second-line supervisor (“Supervisor”) gave him a memorandum stating that he was in a non-deployable status until he provided requested medical documentation; 4. on June 10, 2017, a Work Lead repeatedly said, “fuck you, [n-word]”; and on June 12, 2017, Complainant learned that the Supervisor condoned the Work Lead’s behavior because other Black males were saying it; and 5. on October 12, 2017, Complainant was retaliated against when he received a management-directed reassignment out of a deployable depot team due to medical issues. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On October 1, 2020, the AJ granted the Agency’s Partial Motion to Dismiss for Failure to State a Claim and dismissed the allegations in claim 1.2 Over Complainant’s objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision on October 2, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed, but Complainant did not submit a brief in support of his appeal. The Agency did not respond to Complainant’s appeal. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 2 We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). Complainant did not contest the AJ’s dismissal of claim 1; as such, we will not address it in the instant decision. 2021004828 3 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and he must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant did not provide any arguments on appeal, and he has failed to establish such a dispute. As an initial matter, the Commission has found that a discrete action states a claim outside of the framework of a harassment analysis and can also be reviewed within the disparate treatment context. See Moylett v. U.S. Postal Serv., EEOC Appeal No. 0120091735 (Jul. 17, 2012); Sedlacek v. Dep’t of Army, EEOC Appeal No. 0120083361 (May 11, 2010). We find that, while Complainant alleged retaliatory harassment for claims incidents 2 and 3, they are timely discrete acts that independently state claims outside of the harassment framework. Accordingly, we will analyze incidents 2, and 3, in the context of disparate treatment based on retaliation. Disparate Treatment (Claims 2, 3, and 5) To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Assuming, arguendo, that Complainant established a prima facie case of retaliation for claims 2, 3, and 5, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 2, the Officer explained that employees from New Cumberland were deployed to support tornado recovery efforts in Albany, Georgia. The Officer overheard two individuals talking about a truck that had just arrived from Albany containing the personal effects of personnel who were in Albany. The Officer discussed the matter with the Supervisor and noted that transport of personnel property via government conveyance needed proper authorization. 2021004828 4 The Officer emailed Complainant to advise him that shipment of personal property via government conveyance was illegal and to refrain from doing this in the future. ROI at 324, 326- 30. Regarding claim 3, the Supervisor issued Complainant a memo notifying him that he had five business days to provide supporting medical documentation regarding his Emergency Essential Deployment Physical. Failure to provide the documentation would result in the inability to recommend Complainant for deployment. ROI at 281. The Supervisor explained that he was responsible for the readiness of his entire team, and the Medical Clinic felt it was necessary to elevate the matter to the Supervisor’s level to ensure that Complainant understood the importance of providing the requested documentation. ROI at 270. The Supervisor responded that Complainant was reassigned after he was given ample time to provide the requested documentation and complete the required physical (claim 5). When employees do not meet the requirements, they are removed from the Deployable Team. ROI at 271. The Commander corroborated that Complainant’s deployable readiness could not be validated, and if Complainant was able to prove that he was fully deployable by passing all medical requirements and providing appropriate documentation, he could have been placed back on the team. The Commander added that employees can deploy anywhere in the world, and some locations are austere with limited medical facilities, so medical readiness was very important. ROI at 341-2. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Complainant did not show that the proffered reasons are not worthy of belief and his bare assertions that the management officials retaliated against him are insufficient to prove pretext or that their actions were discriminatory. Accordingly, we find that Complainant did not establish reprisal for claims 2, 3, or 5. Harassment As discussed above, we found that Complainant did not establish a case of retaliation for claims 2, 3, or 5. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that these actions taken by the Agency were motivated by his protected EEO activity. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected him to retaliatory harassment for claims 2, 3, or 5. 2021004828 5 Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that Complainant belongs to protected classes based on his color and race, and that he was subjected to unwelcome verbal conduct in incident 4. Complainant averred that the Work Lead repeatedly made the statement while they were in a bar in Michigan for a temporary duty (TDY) training mission. ROI at 265. A Witness added that the Work Lead made the comment to their group of five African Americans and one Hispanic man. ROI at 333. The Commission has found that the n-word term is an unambiguous racial epithet and a “pure anathema to African Americans.” See EEOC Compliance Manual, Section 15, “Race and Color Discrimination,” No. 915.003 (Apr. 19, 2006) (quoting Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001); see also Brooks v. Dep’t of the Navy, EEOC Request No. 05950484 (Jun. 25, 1996). As such, we find that Complainant was subjected to harassment based on his race/color. In a case of coworker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999). See Jones v. Dep’t of Labor, EEOC Appeal No. 01A41672 (Oct. 22, 2004) (management official’s failure to address an ongoing tense situation between the complainant and a coworker based on her protected class stated a claim under Title VII). In this case, the Supervisor learned of the incident the following morning by the Work Lead. The Supervisor asked if the n-word was used by others, and the Work Lead responded that he believed that others were saying it but could not say definitively that others did so. The Supervisor informed the Work Lead that the term “should never be used,” and he determined that sensitivity training was needed since it was possible that multiple people used the term. The Supervisor also obtained statements from employees and contacted the EEO Representative upon his return from TDY. ROI at 271, 285-6. The Witness averred that the Supervisor asked, “if other people were saying, why can’t [the Work Lead] say it?” However, the Supervisor responded that he stated that the race of the individual does not matter, and no one should use the term. The Supervisor noted that, if other employees used the term, it may have led the Work Lead to believe that it was permissible for him to use it, but that did not absolve him of the wrongdoing. ROI at 333, 288, 285. 2021004828 6 The Commander asserted that he appointed a “15-6 investigation” into the matter. Upon the results of the investigation, managers issued discipline and the Commander moved the Work Lead off the team. The Commander also confirmed that the team received sensitivity training by the EEO Office. ROI at 340-1. There is no evidence of additional similar incidents. Accordingly, we find that the Agency took immediate and appropriate corrective action. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2021004828 7 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 27, 2023 Date